On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011 -
Before Judges Sabatino and Ashrafi.
Defendant Loc Van Nhan appeals from his conviction by a jury on charges arising out of a brutal attack and robbery of an elderly woman. He also appeals from his seventeen-year sentence of imprisonment. We affirm.
In August 2008, a grand jury in Camden County indicted defendant on charges of first-degree robbery (counts one and two), N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose (count three), N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon (count four), N.J.S.A. 2C:39-5d; second-degree aggravated assault (count five), N.J.S.A. 2C:12-1b(1); and third-degree aggravated assault (count six), N.J.S.A. 2C:12-1b(2). The primary defense at trial was mistaken identification of the assailant. The jury convicted defendant on all counts.
On appeal, defendant raises the following arguments:
THE STATE FAILED TO SHOW SUFFICIENT EVIDENCE THAT LOC'S INTENT TO STEAL PRECEDED OR WAS COTERMINOUS WITH THE USE OF FORCE; THE COURT ABUSED ITS DISCRETION BY DENYING THE MOTION TO DISMISS THE ROBBERY CHARGES.
THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO SHOW THE THREE BASIC ELEMENTS REQUIRED TO PROVE LOC COMMITTED ANY OF THE CRIMES AS CHARGED, (PLAIN ERROR NOT RAISED BELOW).
THE PROBATIVE VALUE OF ALLOWING EXPERT TESTIMONY REGARDING PATIENT RECOVERY RATES UNSUPPORTED BY OTHER EVIDENCE WAS OUTWEIGHED BY ITS PREJUDICIAL IMPACT, THE COURT ABUSED ITS DISCRETION.
THE TRIAL COURT ERRED BY NOT ORDERING [THE VICTIM] TO SUBMIT TO A COMPETENCY HEARING; LOC'S SIXTH AMENDMENT RIGHT TO CONFRONT A COMPETENT WITNESS WAS VIOLATED, (PLAIN ERROR NOT RAISED BELOW).
THE CIRCUMSTANCES OF [THE VICTIM'S] OUT OF COURT IDENTIFICATION STATEMENT DID NOT PRECLUDE UNFAIRNESS AND UNRELIABILITY; IT WAS PLAIN ERROR TO ADMIT THE STATEMENT (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY GIVING A JURY CHARGE THAT COMMENTED ON THE CREDIBILITY OF THE STATE'S IDENTIFICATION TESTIMONY, (PLAIN ERROR NOT RAISED BELOW).
THE COURT FAILED TO APPLY A MITIGATING FACTOR THAT WAS SUPPORTED BY CREDIBLE EVIDENCE, (PLAIN ERROR NOT RAISED BELOW).
Before addressing these arguments, we will recount the pertinent trial testimony.
The victim of the assault and robbery was sixty-nine-year-old T.T., a Vietnamese immigrant who lived with her husband in Camden. In March 2007, defendant arrived at her apartment and asked to stay there. Defendant and his wife stayed in T.T.'s apartment for several months and then moved into another apartment in the same building. T.T. testified that defendant eventually left the building, but that he returned four or five days later, on September 12, 2007, and assaulted her while she was working outside in her garden.
T.T. could not see the assailant at first because he attacked her from behind. She testified as follows:*fn1
Q: . . . . How did he attack you?
T.T.: I . . . sit on . . . the ground and I pull . . . one vegetable. And then I ready to pull the second one and then he attacked me on my head. And at the moment, I went a big head like this.
The stick . . . had like three branches and had the . . . metal on the stick that he hold*fn2 . . . .
And then I saw him and I told, "You hit me, Loc." And then I stood up.
I stood up and I ran. I didn't run . . . to the street, the road, but I ran inside . . . I tried to run into the house.
Q: And what happened as you tried to run into the house?
T.T.: The object . . . that was mine in the garden and he used that object with the metal . . . to hit me.
The victim also testified that defendant took money that fell to the ground from her person.
T.T.: And . . . at the moment, my money fall down right at his feet on the floor.
Q: Okay. Where . . . was your money?
T.T.: [M]y money, I put in the pocket right here. I put it inside like this because I . . . saved that money to buy the airline ticket to go to Vietnam.
Q: Okay. And did you always keep your money there?
T.T.: [S]ometime, I put it in the . . . inside . . . of my body.
Q: How much money did you have on you the day that you were attacked?
T.T.: One thousand eight hundred dollars.
Q: Okay. And when he hit you, you said "The money came out?"
T.T.: I . . . don't know how. How can . . . it fall down, I don't know. I ...